A professor’s freedom to teach is not impaired by the university’s implementation of online substitute performance assessments in lieu of classroom examinations.
In a nutshell
The OVG Bautzen ruled in a decision of 4.2.2021 (OVG Bautzen, Beschl. v. 4. 2. 2021 – 2 B 27/21) that a professor is not affected in his freedom to teach (Art. 5 para. 3 GG, Art. 21 p. 1 SächsVerf, § 4 SächsHSFG) if the university, within the framework of its statutory autonomy, enacts a regulation that excludes presence examinations. This was a question of the organization of the examinations, which did not interfere with the content or method of the examination, which was protected by the freedom of teaching. The VG, which had previously dealt with the case, had taken a different view.
In contrast to most previous decisions in which students took action against the implementation of online examinations (so e.g.: OVG NRW, Beschl. v. 04.03.2021 – 14 B 278/21.NE; on the lawful use of so-called “proctoring software” here), in the present decision a professor objected to a resolution of the faculty council which amended the examination regulations to the effect that in the winter semester 2020/21 examinations could only be conducted as online examinations (“substitute performance assessments”).
The decisive question was whether the freedom to teach (Art. 5 (3) GG, Art. 21 p. 1 SächsVerf, § 4 SächsHSFG) also encompasses the (organizational) framework conditions of the examinations. It is indisputable that freedom of teaching protects the methodological and content-related organization of the course to the extent that it concerns the selection of the questions dealt with scientifically, the views represented and the way in which knowledge is conveyed. This also includes the content and methodological design of the examination. The teaching staff is free here and also protected by the freedom to teach from interference by the university.
At the same time, the university is also a bearer of the fundamental right under Art. 5 para. 3 GG (and the substantively identical guarantees from Art. 21 p. 1 SächsVerf, § 4 SächsHSFG). The university’s freedom of teaching includes academic self-administration and autonomy of statutes, which in particular also includes the power to issue examination regulations. Thus, the University has the authority to determine the organizational and procedural modalities of conducting examinations.
The VG Leipzig (decision of 02.02.2021 – 7 L 41/21), which ruled in the previous instance, had based its decision on the fact that the implementation of online examinations restricts the lecturers in their choice of examination form and saw this as an encroachment on the freedom to teach, which was not sufficiently compellingly justified because the implementation of face-to-face examinations was expressly exempted from the Corona Regulation of the state and, in the case of examinations with a small number of participants, the protection against infection could also be taken into account from an organizational point of view.
While the VG still followed the professor’s argumentation, the OVG ruled in favor of the defendant university. The starting point of the OVG’s argumentation was that a distinction could be made between the university’s freedom to teach and the freedom of the lecturers to teach (in each case, Art. 5 (3) GG): Since the university (in this case, responsible and active in the form of the faculty council) was responsible for issuing the examination regulations, the area of the lecturers protected by the freedom to teach could only begin at the point where the purely content-related methodological design began.
What can readers take away?
An examination regulation that only provides for online examinations does not (according to the OVG) even result in an encroachment on the teaching freedom of the lecturers. The organizational responsibility – also for the organizational framework conditions of the examinations – is the exclusive responsibility of the regulatory area of the university. As long as the examination regulations do not affect the methodological content, there is no interference with the freedom to teach.
© 2023 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit https://home.kpmg/governance.
KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.